IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
Case no.: 2025-045751
In the matter between:
EGIDIUS WILLEM VERSTEIJNEN APPLICANT
and
COLLINS PROPERTY GROUP LIMITED FIRST RESPONDENT
THE SHERIFF (LOWER TUGELA) SECOND RESPONDENT
KWADUKUZA LOCAL MUNICIPALITY THIRD RESPONDENT
_________________________________________________________________
ORDER
_________________________________________________________________
The following order is granted:
The application for leave to appeal is dismissed with costs.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
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BRAMDHEW AJ
Introduction
[1] This is an application for leave to appeal against the cost order that I
granted against the applicant on 4 April 2025. I directed that the applicant pays
the first respondent’s costs on the party and party scale C.
[2] The applicant launched an urgent application, requiring the first
respondent to prepare a n affidavit within truncated timeframes. On the morning
upon which the applicant had set the matter down, having had sight of the first
respondent’s answering affidavit, the applicant applied for an order adjourning
the matter in order to consider the answering affidavit and the documents
delivered, and to then deliver a replying affidavit. The adjournment was granted,
but costs were awarded to the first respondent on scale C.
[3] The applicant seeks to appeal the cost order and the scale on which it was
granted.
The legal framework
[4] The award of costs is in the discretion of the presiding judicial officer. As
emphasised by the Constitutional Court in Trencon Construction (Pty) L td v
Industrial Development Corporation of South Africa L td and Another 1 and Hotz
and Others v University of Cape Town ,2 costs orders fall within the category of a
true discretion, meaning that an appellate court may interfere only where the
discretion was not exercised judicially.
[5] This is reinforced by s 16(2) (a) of the Superior Courts Act 10 of 2013 (the
Act’), which provides that no appeal lies against a cost order only, unless the re
are exceptional circumstances that warrant the hearing of such an appeal.
1 Trencon Construction (Pty) L td v Industrial Development Corporation of South Africa L td and
Another [2015] ZACC 22; 2015 (5) SA 245 (CC) para 85.
2 Hotz and Others v University of Cape Town [2017] ZACC 10; 2018 (1) SA 369 (CC) paras 25
and 28.
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[6] Further, s 17(1)(a) of the Act requires that leave may be granted only if the
appeal would have a reasonable prospect of success or there is some other
compelling reason why it should be heard. An arguable case or a mere possibility
of success is not enough; there must be a sound, rational basis to conclude that
success on appeal is reasonably likely.3
[7] In Mukanda v South African Legal Practice Council ,4 the court confirmed
that appeals on costs alone are rarely allowed. The applicant bears the onus of
establishing exceptional circumstances justifying appellate interference. The
court stated:
‘[9]In light of ss 16(2) (a)(ii), 17(1)(a) and 17(1)(b) of the Act and the case law referred to
hereinbefore, it can thus be stated that a court will not grant an application for leave to
appeal against a costs order only, unless the applicant can satisfy the court that an
appeal court would reasonably find that exceptional circumstances exist that warrant
such leave. In the absence of exceptional circumstances, the appeal would not have any
reasonable prospect of success, and the application for leave to appeal will
consequently have to be dismissed.’
[8] In respect of the scale of costs awarded, in Gourlay v Road Accident
Fund,5 the court held that:
‘Awarding counsel’s fees on Scale B or C Scale has nothing to do with a punitive goal.’
Application to the facts
[9] The order granted is one solely as to costs. The applicant instituted an
urgent application . The first respondent was compelled to instruct counsel and
prepare an answering affidavit to meet the applicant’s urgent case . Upon receipt
of the first respondent’s answering affidavit, the applicant sought the court’s
indulgence to adjourn the matter. The matter was adjourned with no substantive
3 MEC for Health, Eastern Cape v Mkhitha and Another [2021] ZASCA 176 para 17.
4 Mukanda v South African Legal Practice Council 2021 (4) SA 292 (GP).
5 Gourlay v Road Accident Fund [2024] ZAWCHC 398 para 61.
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rights being determined by the court . In those circumstances, it was entirely
appropriate that the first respondent be awarded its wasted costs.
[10] Further, the assessment of an appropriate scale is a lso a matter of judicial
discretion.6
[11] The cost order reflected settled principles governing wasted costs which
fall squarely within the judicial exercise of discretion contemplated by the
authorities.
[12] The applicant has not shown that the discretion was exercised improperly,
nor has any exceptional circumstance been shown to exist . The re is no
compelling reason why an appeal should be entertained.
Order
[13] I therefore make the following order:
The application for leave to appeal is dismissed with costs.
________________
BRAMDHEW AJ
6 Ibid para 54.
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Case information
Heard on: 18 July 2025
Judgment delivered: 17 September 2025
For the applicant: Mr Cassan
Instructed by: Rakesh Maharaj & Company
87 Mahatma Ghandi Street
Suites B & C
KwaDukuza
Ref: RM/TM/V149/CIV
For the first respondent: Mr Gounden
Instructed by: Woodhead Bigby Attorneys Inc
92 Armstrong Avenue
La Lucia, Durban
Ref: JSB/pg/MAT101608